Montana asbestos-disease claims still trickling into courts

Residents of Libby, where health officials say hundreds of people have been killed by asbestos poisoning, have until the end of the month to contact environmental officials to have their homes inspected and cleaned.(Photo: AP)

More than 17 years after officials uncovered a rampant asbestos contamination from a vermiculite mine that had plagued Libby, negligence claims are still trickling into the courts.

This week, 12 cases will go before a federal magistrate judge to determine if they should be heard in state or federal court. Roger Sullivan, whose firm has represented about 2,000 individuals seeking financial compensation after being diagnosed with asbestos-related disease, said those 12 are part of another 840 cases currently pending against the BNSF Railroad Company, the state of Montana and several other entities.

Sullivan spoke with the Tribune Monday about the procedural status of these and past asbestos-related cases. He declined to speak about the substance of the cases themselves.

"We are dealing with asbestos-related diseases, the nature of which are latent diseases," he said. "We are faced with timely filing of these cases within the statute of limitations."

Sullivan said the statute of limitations on these cases allows people to file claims within three years of their diagnosis of an asbestos-related disease. While some people living in Libby had felt the effects in their lungs from asbestos exposure early, others who lived farther from heavily-contaminated sites developed symptoms more slowly. That's why cases continue to trickle in, well after hundreds of cases have already been settled, he said.

"Typically what has happened is that those cases that are severe or have a form of asbestos-related cancer are resolved first, and then some who have mild diseases are handled later," he said.

Sullivan said the amount awarded to previous clients in asbestos-related cases remains confidential. W.R. Grace, the mining company that mined the infamous Libby ore and then manufactured and sold it in products such as insulation, filed for Chapter 11 bankruptcy in 2011 and later established two compensation trusts worth more than $4 billion.

In August, 12 individual cases filed by former Libby residents against the BNSF Railway Company and a railway supervisor were transferred up to U.S. District Court in Great Falls. The cases were initially filed in district court in Cascade County in 2015, 2016 and earlier this year.

The cases also list Robinson Insulation, the now-defunct Great Falls company, and the state of Montana as defendants. Robinson Insulation, which used to manufacture insulation in its Great Falls location from the vermiculite ore mined in Libby, closed in 1987. (Owen Robinson, a candidate for Great Falls City Commission, was not active in the Robinson Insulation company. His father and grandfather started the company, but he played no role in the company.)

Retired BNSF supervisor John Swing is also listed as a defendant in each case. The suits allege that the railroad company and Swing, now 80 years old and still a Libby resident, knew or should have known there was toxic asbestos in the vermiculite the company transported by the rail facility about four-and-a-half miles east of Libby.

About a week after the cases were filed in federal court, attorneys for BNSF and Swing filed to dismiss the cases. In the motion, attorneys argue the company and Swing did not know at the time that the asbestos was toxic, nor did they owe any duty of protection to the residents now plagued with asbestos-related diseases.

Robinson Insulation and the state have yet to name their defense attorneys.

The litigation closely mirrors cases filed in Great Falls courts more than 10 years ago, when former employees sued several entities related to the vermiculite industry, including Robinson Insulation. Sullivan and other attorneys at his firm, McGarvey, Herberling, Sullivan and McGarvey, also represented the employees in those cases 10 years ago. For almost 20 years, his firm has represented plaintiffs seeking damages from those allegedly responsible for asbestos exposures, including W.R. Grace, BNSF, Libby lumber companies and more.

"In some instances, they may have had exposures that provide basis for a claim against the local lumber mill, which was, in essence, the retail outlet for Zonolite Insulation (the vermiculite-based insulation later found to be laced with asbestos)," Sullivan said.

Of the approximately 2,000 clients Sullivan's firm has represented, about 800 individual cases have already been settled against multiple defendants, he said. While those cases were settled in January after they had been pending for nearly 16 years, Sullivan said that was an anomaly. The cases were all delayed as W.R. Grace went into bankruptcy; when the company came out of bankruptcy in 2015 and was able to establish the trusts, the cases got moving once again. The Associated Press in January reported that the state settled with more than 1,000 victims of asbestos-related disease for $25 million.

Still, with the companies named as defendants in the current cases, Sullivan said it's impossible to know how soon these cases will conclude, considering parties aren't even sure yet which court will be hearing the cases.

"Here, we had several cases that were beginning to be moved in state district court and now that process has been temporarily halted while we're having to resolve these issues in federal court," he said.

Chad Knight, an attorney representing the railroad, did not return calls made by the Tribune for comment.

Several thousand people have contracted some form of asbestos-related lung disease, such as mesothelioma since before the W.R. Grace mine shuttered in the 1990s. Health officials estimate about 400 people have died from asbestos-related diseases since the exposure problem surfaced in 1999.